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2015 Supreme(Guj) 249
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Jayant M. Patel and G.B. Shah, JJ.
Aher Khima Manda - Appellants
Vs.
State of Gujarat - Respondent
Criminal Appeal Nos. 427 and 640 of 1996
Decided On: 05.05.2015
For Appellant/Petitioner/Plaintiff:N.D. Nanavaty and Nirad Buch for Nanavaty, Advocates
For Respondents/Defendant: Hardik Soni, A.P.P.
Important Point—Opinion of doctor as to how an injury was caused on deceased cannot overrule unimpeachable testimony of eyewitnesses.
Headnote:Indian Penal Code, 1860---Section 304 Part-II—Culpable homicide not amounting to murder---There was no delay in lodging F.I.R.---Apart from that, name, role and weapon used in commission have been described in detail by complainant along with names of eye witnesses who have witnessed incident---There was no delay in filing F.I.R. or that F.I.R. was concocted to falsely implicate accused---Opinion of doctor as to how an injury was caused on deceased cannot overrule unimpeachable testimony of eyewitnesses---If culpable homicide does not amount to murder, Section 304 of IPC gets attracted and as discussed by Trial Judge at length, it can be said without any doubt that accused is liable to be sentenced for offence as stated in Part-II of Section 304 of IPC---Appeals dismissed.
Result—Appeals dismissed.
G.B. Shah, J.
1. Criminal Appeal No. 427 of 1996 has been filed by the appellant-original accused No. 1 against the judgment and order of conviction and sentence dated 4-6-1996 delivered by the learned Addl. Sessions Judge, Junagadh, in Sessions Case No. 73 of 1995 whereby original accused No. 1 was convicted and sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for one year for the offence punishable under Section 304 Part-II of Indian Penal Code.
2. Criminal Appeal No. 640 of 1996 has been filed by the State of Gujarat against the judgment and order dated 4-6-1996 delivered by the learned Addl. Sessions Judge, Junagadh, in Sessions Case No. 73 of 1995 acquitting original accused Nos. 2 to 6 and convicting and sentencing original accused No. 1 under Section 304 Part-II of Indian Penal Code.
3. Short facts are that as per the complaint, on 4-1-1995 the complainant Rasilaben and her sister Ramaben were in their field since 10.00 a.m. and were putting manure into their farm. At about 11.00 a.m., their father Chhaganbhai came to their farm and when he reached near the western boundary of their farm, one Khima Mandan Aher having an orchard near their farm also came there with a simple thick stick in his hand and said Khima Mandan started altercation with the deceased Chhaganbhai presuming that he would close his way of coming in the farm and Khima Mandan got instigated and he hit on the head of Chhaganbhai with said stick as a result thereof, Chhaganbhai screamed and fell down and hence, complainant and her sister Rama ran towards that side. Meanwhile, from the side of the orchard of Khima Mandan, Jagmal Ramsi came there with a shovel (pavda), Babu Khima, Karshan Khima and Rami Khima with sticks and Bheniben Khima also with stick. Out of these persons, Bheniben and Jagmal Ramsi hit the complainant with stick on back and on the side causing injury and Babu Khima hit Rama on back and on hand. As Chhaganbhai Muljibhai sustained serious injuries, he was taken to Veraval Municipal Hospital by his relatives and Villagers where he was declared dead by the doctor. The police was informed by the Medical Officer of Veraval Municipal Hospital and police reached the hospital and a complaint was lodged and offence was registered. At the end of investigation, as there was a prima facie case against the accused persons, charge sheet was filed against them.
4. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions for disposal on merits. The learned Judge framed charge against the accused. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused.
5. To prove the guilt against the accused, prosecution examined in all 12 witnesses and produced and relied upon several documentary evidence numbering 17.
6. On submission of closing pursis by the prosecution, further statement of the accused under Sec. 313 of Code of Criminal Procedure was recorded qua incriminating evidence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Addl. Sessions Judge, Junagadh, delivered the impugned judgment convicting and sentencing original accused No. 1 and acquitting original accused Nos. 2 to 6 as aforesaid in the earlier part of this judgment giving rise to prefer the present appeals.
7. Heard learned Senior Advocate, Mr. N.D. Nanavaty with Mr. Nirad such for M/s. Nanavaty Advocates for the original accused and learned APP, Mr. Hardik Soni for the State.
8. Mr. N.D. Nanavaty, learned Senior Advocate mainly submitted that there is a delay in lodging the F.I.R. in as much as although the Investigating Officer of Prabhas Patan Police Station was informed by the Medical Officer on duty about the murder at about 12.35 p.m.,
